State v. Hall

• Decision Date: 22 December 1925
• Docket Number: No. 26547.,26547.
• Citation: State v. Hall, 279 S.W. 102, 312 Mo. 425 (Mo. 1925)
• Parties: STATE v. HALL.
• Court: Missouri Supreme Court

279 S.W. 102

STATE v.HALL.

No. 26547.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Rehearing Overruled January 6, 1926.

Appeal from Circuit Court, Cass County; B. E. Thurman, Special Judge.

Harold Hall was convicted of feloniously transporting intoxicating liquor, and he appeals.Affirmed.

W. D. Summers, of Harrisonville, and W. M. Anderson, of Kansas City, for appellant.

Robert W. Otto, Atty. Gen., and James A. Potter, Sp. Asst. Atty. Gen., for the State.

WALKER, P. J.

The appellant was charged in one count by information in the circuit court of Cass county with the felonious transportation of intoxicating liquor, to wit, hootch, moonshine, and corn whisky, and in another with the unlawful possession of intoxicating liquor.Upon a trial to a jury before a judge of another circuit called in to try the case, the regular judge having been disqualified by the appellant, he was, in July, 1924, convicted on the count for transportation, and sentenced to four years imprisonment in the penitentiary.From this judgment he appeals.

A deputy sheriff of Cass county, the night marshal of Pleasant Hill and two others, at about 5 o'clock on the afternoon of July 19, 1924, at a point on the Harrisonville-East Lynne road near the Harrisonville cemetery, about one and one-fourth miles from Harrisonville, saw the appellant sitting in an automobile on the side of the road with two glass one-gallon bottles or jars in the car between the front and back seats.The officers had received information that the appellant would deliver intoxicating liquor to one Severs at that point.The appellant was arrested, and taken with the bottles or jars and their contents before a justice of the peace; a complaint was filed by the prosecuting attorney charging him with the transportation of the intoxicating liquors specifically named; and he was required to give bond for his appearance in answer to said charge.While at the justice's office, and in custody of the officers, he asked, and was given, permission to talk to his wife.In this conversation he told her that "he had been caught with the goods on him, and that he wanted her to come up and see if he could get bond."An examination of the contents of the bottles found unconcealed in appellant's car showed that the liquor contained therein was corn whisky.These bottles and their contents were kept in a vault by the prosecuting attorney from the time they were taken to the justice's office until the trial when they were introduced and examined by the jury.

Prior to the arrest of the appellant the prosecuting attorney had filed a sworn petition with a justice of the peace of the township for the issuance of a search warrant to the sheriff on the county, commanding him to apprehend said Harold Hall(appellant), and by force, if necessary, to search and seize a certain Chevrolet touring automobile owned and operated by said Harold Hall, in which it was alleged that intoxicating liquors, to wit, hootch, moonshine, and corn whisky were by said Harold Hall being, transported for the purpose of making an unlawful sale of same to one Severs, said sale to be made on the Harrisonville-East Lynne road, near the Harrisonville cemetery in Cass county, on the 19th day of July, 1924, at about 5 o'clock p. m. of that day.That affiant is informed that said Severs has made arrangements with the appellant to deliver the said intoxicating liquors to him as aforesaid, and that the said liquors were being unlawfully transported and sold by said Harold Hall.Under the warrant thus issued in conformity to the allegations of the petition the sheriff arrested the appellant and seized the bottles of liquor.

The appellant and a witness, who testified in his behalf, stated that the bottles taken from appellant by the sheriff did not contain intoxicating liquor, but water drawn from appellant's well, and that he took it to the place where he was arrested to sell it to Severs under the pretense that it was corn whisky, as he had been warned that Severs was acting as a "stool pigeon" in the detection and prosecution of crimes against the prohibition statute.Appellant also denied having any telephone conversation with his wife in the presence and hearing of the officers in which he admitted his guilt.The principal contention of the appellant is that the seizure of the liquor in his car was illegal because the officers did not have a valid warrant authorizing the search of the automobile.A motion was filed and overruled prior to the trial to quash the warrant and to supress the evidence introduced in support thereof.The defects in the warrant are alleged to consist in a failure to properly designate the car to be searched as a Chevrolet when the fact disclosed that it was a Ford, and that the application for the warrant was made upon the information and belief of the prosecuting attorney and not upon his personal knowledge.

I.The validity of the search warrant is assailed.Under the facts a review of this contention is not necessary to a proper disposition of this case.The application for, and procurement of, the warrant was an act of supererogation on the part of the prosecuting attorney.The warrant clothed the sheriff with no greater power, in the performance of his duty in the enforcement of the law, than he possessed without it, except to apprise him that the appellant would be at the place designated in the commission of a felony.Upon his arrival there, if the performance of his duty had required him to act under the authority conferred by the warrant, it was unnecessary to invoke it, because the liquor described in the warrant, and which would have been the subject of his search under a warrant, was in plain view, and he had, as the books put it, not only "reasonable cause to suspect," but visual evidence to sustain, the conclusion that a felony was being committed which authorized the appellant's arrest and the seizure of the liquor without a warrant.The rule sustaining this conclusion is well established in the criminal law in defining the authority of officers in making arrests, and has frequently been affirmatively recognized by this court.In State v. Underwood, 75 Mo. loc. cit. 237, we cited with approval the rule as applied by Shaw, C. J., in Com. v. Carey, 12 Cush.(Mass.) 246, as follows:

"If a constable or other peace officer arrest a person without warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful."

In State v. Spaugh, 200 Mo. loc. cit. 596, 98 S. W. 55, we reaffirmed this rule; and later in State v. Whitley(Mo. Sup.)183 S. W. loc. cit. 320, Faris, J., in discussing this question, reviews and cites with care the authorities on this subject, and says:

"We conclude, then, that a police officer may make an arrest without a warrant whenever he has a well-founded and reasonable belief, based upon the facts and circumstances presently existing, that a felony is being committed, even though such belief may afterwards turn out to be groundless."

The arrest being lawful, and the liquor, which constituted the corpus delicti, being within the view of the " officer, eliminates from consideration any question as to the illegality of the search warrant as a basis for the suppression of the evidence.If convincing reasons for the correctness of this rule are not apparent from the statement of the facts, like determinations by courts of last resort elsewhere will be found to sustain it.

In a recent decision by the Supreme Court of South Carolina(State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500), it is held that the constitutional provision against unlawful searches and seizures does not prohibit a seizure without a warrant, where there is no need of search, and the contraband subject-matter is open to the eye and the hand.This case relied for its immediate authority upon State v. Byrd, 72 S. C. 109, 51 S. E. 544, in which it was held that the constitutional limit had not been invaded when an officer arrests, without warrant, one whom he discovers in the act of violating the law.

In State v. Miller, 121 Wash. 153, 209 P. 9, the defendant sought by motion to have liquor seized and returned to him.The motion was overruled; the court holding that, where the officer saw the liquor in the autotruck on the highway, his seizure of same did not constitute a trespass, and that his act was not in violation of the provision against searches and seizures.

In U. S. v. Bateman(D. C. Cal.)278 F. 231, where rumrunners were conducting an illicit trade in liquor between Mexico and California, an officer, without a warrant, searched an automobile used in the business, and arrested the driver and seized the liquor, in the search of the automobile and seizure of the liquor, the court held that the acts of the officer were authorized because he had information that the defendant was transporting liquor.Of like tenor are the rulings in United States v. Fenton (D. C.)268 F. 221;Elrod v. Moss (C. C. A.)278 F. 123;O'Connor v. U. S. (D. C.)281 F. 396;andLambert v. U. S. (C. C. A.)282 F. 413.

An exhaustive opinion on searches and seizures, as applied to automobiles, has recently been rendered by the federal Supreme Court in Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790.Seven of the justices concurred in this opinion; McReynolds and Sutherland, JJ., dissenting.Chief Justice Taft, speaking for the court, after reviewing the statutes, and distinguishing the numerous rulings of the Supreme Court and other tribunals on this subject, held that search and seizure, without a warrant, of an automobile engaged in the illegal transportation of intoxicating liquor...